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Present: Lyall Grant J.
ANCHAPULLAI v. BAKER et al.
525—P. G. Teldeniya, 14,424.
Appeal—Accused found guilty-r-Discharged and ordered to give securityfor good behaviour—Criminal Procedure Code, s. 325 (1).
Where an accused person, on being found guilty,, was dischargedand ordered to give security for good behaviour,—
Held, that the accused had a right of appeal from the order.
^^1'PEAL from an order- of the Police Magistrate of Teldeniya.
Navaratnam, for appellant.
Abeyesekere, for respondent.
October 3, 1929. Lyall Grant J.—The appellants were convicted of theft of the carcase of an elkand ordered to give personal bail in Re. 100 each to be of goodbehaviour for six months.
The appeal is on a question of law on the ground that there wasan entire absence of criminal intent and that the judgment iscontrary to law.
It is admitted that the accused removed the animal from' thespot where it was lyin, and the question for decision is whether thiswas done with the intention of taki g dishonestly the property outof the possession of the complainant (section. 366, Criminal ProcedureCode).
A dishonest intention is an intention to cause wrongful gain to oneperson or wrongful loss to another person (section 22).
“ Wrongful gain ” is gain by unlawful means of property to whichthe person gaining is not lawfully entitled.
“ Wrongful loss ” is loss by unlawful means of property to whichthe person losing it is legally entitled (section 21).
The learned Magistrate has found that the accused removedthe animal from the possession of the complainant. He has notdefinitely found that this was done either by force or by stealth,. unless his assertion that he believes the prosecution story includesthe belief that the first accused raised his cane to strike the manleft in charge of the elk.
There is no special reference to this important) fact in hisjudgment. Nor has he made any finding on the point whetherthe accused acted in bona fide error as to* the ownership of the animal.
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The case for the prosecution is that the complainant sho.t the elkon Crown forest, that he . went to find coolies to carry it away andleft two men in charge, that while he was away the accused camewith several coolies and removed the elk, the first accused raisinghis cane in a threatening manner.
There is nothing in the evidence to contradict the accused’sassertion of his belief that the animal was shot on his estate. Tomy mind, on the evidence there can be little doubt that the firstaccused bona fide believed that the animal was shot on his estate..The prosecution witness Muttan does not assert that he told theaccused that the animal was shot in Crown forest, nor does he assertthat he made any protest of any kind when the accused removedthe animal.
I cannot find in the evidence, anything which discloses dishonestintention on the part of the accused, and on this ground the accusedis entitled to acquittal.
It was argued on behalf of the Crown that there was no right ofappeal in the case as there had been no conviction, the Magistratehaving dealt with the case under section 325 (1).
It has been more than once held by this Court that there is- aright of appeal from an order under section 325 (1) on the groundthat such an order is a final order and therefore appealable undersection 338.
I would refer to the recent decision of my brother Akbar inInspector of Police, Avissawella v. Fernando,1 which reviews theauthorities.
The petition of appeal sho- ;s that the appellants look on thejudgment as a conviction.
A finding of guilty was recorded and the accused were bound overfor six months.
It was however matter of agreement between Counsel whoappeared in this Court that the procedure adopted by the Magistratewas in effect an order discharging the appellants under section325 (1) (b).
As it has been held that an appeal lies from such an order, thequestion whether there has been a conviction is only of importancein order to determine whether the accused's light of appeal is undersection 335 or section 338.
The only sentences referred to In section 335 aye fine andimprisonment, and the right of appeal on the facts depends on theseverity of the sentence.
These are the only punishments which by section 15 a PoliceCourt has power to inflict.
1 6 Times Law Rep. 142.
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I think the appeal is under section 338, and on the authoritiesreferred to the accused have a right of appeal both on the law andon the facts.
On the facts the question is whether one is to believe the story of ^uhaptiUaiMuttau or of the estate superintendent or of the assistant superin- v. Bakertendent.
The superintendent's story is that he received information that.an elk had been shot on the estate and that he went to see with somecoolies. He was shown the spot where the animal had been rolleddown by the third accused. Suppiah came up and' showed wherethe animal was lying hidden near the road. He remained thereabout twenty minutes and then had the animal removed. He saysthat there was no one there and that Muttan’s story is absolutely ^false. He met the fourth accused, the assistant superintendent,about a quarter of a mjile from the spot. He kept the animal till5 p.m., then cut it up, distributed the meat, and informed thePolice.
The learned Magistrate has accepted the story for the prosecutionwithout criticism although there are a number of points which appearto call for explanation.
He subjects the story for the defence to analysis which I am boundto say seems to me to be hypercritical.
For example, both the European witnesses agree that the fourthaccused was not at the spot. The witness Suppiah says that thefourth accused was sent for by the first. This is treated as acontradiction although Suppiah did not say that* the fourth accusedcame to the spot nor was= the first accused asked whether he had sentfor the fourth accused or the fourth accused asked whether he hadreceived such a message.
The criticisms refer to minor inconsistencies which would appearcapable of explanation.
On the other hand there are points in the prosecution evidencewhich seem to call for explanation.
The important fact in issue is whether the. first. accused hadreasonable belief that the property in question had been stolen fromhim. The first accused says that he was told that the animal hadbeen shot on his estate, and that he was shown the place wherethe animal had been rolled down. .
Assuming that, when the first accused found the animal concealedbeside, the road (which is in harmony with Muttiah’s evidence) andwe are to believe Muttan’s story that he was there in charge of theanimal and that he told the accused that it had been shot by thecomplainant, there is nothing to show that Muttan said it had beenshot anywhere but on the land of the accused.
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A nchapuUair. Baker
The bona*, fide* of the accused is to my mind beyond question.But it is only fair to the accused to say that while I have not hadthe advantage possessed by the Magistrate of seeing the witnesses,I am much more impressed by the evidence for the defence than bythat led for the prosecution.
The appeal is allowed and all the accused acquitted.
ANCHAIPULLAI v. BAKER et al